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05/13/97 KAREN FRANKLIN v. RICHARD DEVRIENDT

May 13, 1997

KAREN FRANKLIN, PLAINTIFF-APPELLEE,
v.
RICHARD DEVRIENDT, DEFENDANT-APPELLEE, V. SANDRA FURMAN AND RICHARD FURMAN, INTERVENORS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 93 D 79628. Honorable R. Morgan Hamilton, Judge Presiding.

As Corrected June 4, 1997. Released for Publication June 25, 1997.

The Honorable Justice Tully delivered the opinion of the court. DiVITO, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Intervenors Sandra and Richard Furman appeal from an order of the circuit court denying them leave to intervene and file a petition for legal guardianship of their granddaughter, Roxanne DeVriendt.

Roxanne Devriendt was born on September 15, 1992. Her natural parents, plaintiff Karen Franklin and defendant Richard DeVriendt, were not married to each other and did not reside together. On or about November 13, 1992, upon agreement between plaintiff and Sandra Furman, Roxanne went to live with intervenors, Roxanne's paternal grandmother and step-grandfather. On August 3, 1993, the trial court entered an order, pursuant to a joint petition filed by plaintiff and defendant, establishing defendant's paternity and awarding joint custody of Roxanne to defendant's paternity and awarding joint custody of Roxanne to plaintiff and defendant. In July 1994, intervenors filed a petition for legal guardianship of Roxanne. Rather than pursuing this petition, however, intervenors subsequently filed a motion to vacate the August 3 order and sought to intervene and petition the court for custody of Roxanne. Plaintiff then filed a petition for modification of custody seeking an award of sole custody of Roxanne. During the proceedings, the court ordered that Roxanne was to remain with the intervenors and granted plaintiff weekly visitation. The trial court appointed a guardian ad litem and attorney for Roxanne. At the conclusion of a hearing on the issue of whether intervenors had standing to intervene and seek custody of Roxanne pursuant to section 601(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/601(c) (West 1994)), the trial court concluded that the intervenors did not have physical custody of Roxanne and therefore lacked standing.

At the hearing, the parties entered by stipulation the deposition testimony of plaintiff and Sandra Furman. The court also heard testimony. The evidence established that Sandra Furman ("Furman") first became aware that plaintiff and defendant had a child together approximately six days after Roxanne was born. Thereafter, Furman began visiting Roxanne at plaintiff's apartment every two to three days. At the time plaintiff was living in a two bedroom apartment with her five other children, three grandchildren and a niece. Furman testified that when she visited, she brought food, clothing and other necessities for Roxanne because plaintiff did not have these items.

On November 13, 1992, Furman went to plaintiff's apartment at defendant's urging because there had been no electricity in the apartment for several days. When Furman and defendant arrived, there was no electricity, and plaintiff was attempting to heat the apartment by lighting the stove burners. Furman offered to care for Roxanne until plaintiff was able to rent a new apartment. Plaintiff agreed and sent Roxanne and all of her belongings with Furman.

From November 1992 until about May 1994, defendant baby-sat for Roxanne during the days, while intervenors were at work. Defendant did not reside with intervenors. After May 1994, Furman quit her full time job and began working part time in the evenings and on weekends. Furman then cared for Roxanne during the day, and her husband or daughter cared for Roxanne while she worked. After defendant stopped baby-sitting daily, he continued to visit Roxanne, approximately twice per week. Defendant paid intervenors $60 to $100 per month until October 1994. He also told intervenors that he would take Roxanne when he was working and had an apartment.

Furman testified that plaintiff visited Roxanne once every two or three weeks, for two to three hours per visit, until Roxanne was five or six months old. Then plaintiff's visits to Roxanne decreased to about once a month, primarily on holidays. During the summer of 1993, plaintiff began skipping months without a visit. Plaintiff had an overnight visit with Roxanne in April 1993. Furman testified that the decrease in plaintiff's visits came after Roxanne was diagnosed with a birth defect in her left optic nerve, which required that the child wear an eye patch eight hours per day. Plaintiff never asked Furman to return Roxanne to her. Plaintiff once offered to buy diapers, but Furman told her to keep the money to get an apartment and furniture.

When Roxanne was six months old, she was diagnosed with a birth defect to her left optic nerve. Plaintiff accompanied Furman to the doctor when Roxanne received her inoculations, but did not attend any doctor appointments related to the eye condition. Roxanne was insured under plaintiff's insurance policy until July 1994, when the Furmans transferred Roxanne to Richard Furman's insurance policy because plaintiff was in danger of losing her lob.

Furman testified that she was not aware of the joint custody order entered on August 3, 1993, until intervenors filed their petition for legal guardianship of Roxanne. At that time, defendant informed her of the custody order. Furman testified that she and her husband petitioned for legal guardianship of Roxanne because they had been caring for Roxanne for two years and contemplated caring for her until the age of 18. Furman wanted legal guardianship so that she would be able to take Roxanne to the doctor and sign for medical procedures. Furman testified that Roxanne calls intervenors "grandma" and "grandpa," but later testified that Roxanne has attempted to call her "mommy."

Plaintiff testified that she allowed Furman to take Roxanne because she was having problems at work, arriving late or not at all when she had baby-sitting difficulties. She was also having difficulty with defendant, who was threatening that if Roxanne was hurt, he would harm plaintiff's other children. Plaintiff indicated that her agreement with the intervenors was that she and defendant would try to find an apartment together and that, when they did, she would come and get Roxanne.

Plaintiff testified that between November 1992 and August 1993, when she and defendant filed a petition to establish paternity, she visited Roxanne "on my off days and on weekends and sometimes not on my off days." Between August 1993 and July 1994, she visited as often as she could and tried "to get out there at least once a week." Plaintiff gave money to defendant for Roxanne's ...


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